'Looking Backward' to 1938

41 Pages Posted: 18 Sep 2016

Date Written: 2014


As Voltaire supposedly said, "the perfect is the enemy of the good," and utopians may be the bane of all reformers who operate in the world as it is rather than as it might be in the imagination of those with uncommon imaginations. But it seems to me a useful device to reflect on our seventy five- year experiment with the Federal Rules by thinking about how the framers of that breakthrough, who almost surely were familiar with Bellamy's book, would react to our contemporary litigation world if they could visit it. Would they be similarly disappointed? My guess is that they would not though they would probably be quite surprised by many things that we take as commonplace. In this Essay, I first sketch what appear to be the attitudes of the framers. I then explore what has happened to change litigation since 1938 and consider the ways in which discovery reform has responded to the challenges of those developments. Finally, I will explore the new discovery challenges of the twenty-first century that may justify a reconsideration of some assumptions about getting "all" the relevant information. I conclude that the gradual adjustments we have seen and may see are true to the framers' vision and don't deserve denunciation, even by those who think some of them wrong-headed.

Suggested Citation

Marcus, Richard, 'Looking Backward' to 1938 (2014). University of Pennsylvania Law Review, Vol. 162, 2014, UC Hastings Research Paper No. 208, Available at SSRN: https://ssrn.com/abstract=2840023

Richard Marcus (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-565-4829 (Phone)
415-565-4865 (Fax)

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